Medical records provide legal evidence of abuse of a child/adolescent. Well-documented medical records may eliminate or reduce the time you may be required to spend in legal activities related to a case of child abuse.
Records are submitted into evidence as business records created in the ordinary course of business. They should be precise and professional, containing all appropriate information but no extraneous information and no opinions. When records are illegible or comprehensible only to you, the value of the records is minimal or nonexistent even if the records are germane to diagnosis and treatment because they will not be deemed admissible in a court of law.
Access to medical records is governed by a combination of constitutional, statutory, regulatory, and case law. The Health Insurance Portability and Accountability Act (HIPAA) addresses the security and privacy of patient health data. The text of the HIPAA regulations can be found at www.hhs.gov/ocr/hipaa/ . The effect of the HIPAA regulations on the ability to transfer child abuse information is still being evaluated. The American Bar Association publication The Impact of HIPAA on Child Abuse and Neglect Cases is available at www.pcsao.org/HIPAA/HIPAAChildAbuse.pdf (PDF). In general, when medical information is critical to the protection of the child, sharing of that information is recommended and ethically responsible.
When possible, obtain permission from the parent(s) or guardian(s) of child abuse victims for sharing of medical information with non-medical team members. Multidisciplinary child abuse teams are well accepted as the most effective and compassionate response to allegations of child abuse. There should be procedures, such as through informed consent, to assure that information can be shared in an appropriate and ethical manner.
The issue of a patient's right to consent to release of information is complicated when the patient is a minor. Child Protective Services caseworkers and supervisors are authorized by law to obtain certain medical information pertaining to a minor whom a medical provider believes may have been a victim of a child abuse. Parental permission for release of records is not required. Other methods of obtaining confidential medical information regarding a minor include judicial subpoena or authorization pursuant to a specific federal or state authority. Parents generally have the right to authorize release of information on the child's behalf. Consequently, they also have the right to prohibit such release. When the parent is accused of an offense, the parent's decision may be based on his or her own protection rather than on the best interests of the child.
If an accused parent wants of copy of the child patient's record, New York Public Health Law allows a provider to deny a patient (or patient's parent) access to patient records:
If the provider determines that the requested review of the information can reasonably be expected to cause substantial and identifiable harm to the subject or others which would outweigh the qualified person's right of access to the information, or would have detrimental effects. (N.Y. Pub. Health Law ~ 18(3)(a), (b), and (d).)
You may also face situations where you are aware that a child/adolescent has provided information, reflected in the medical record, that he or she does not want a parent to know. You may want to pursue measures to protect the record under these circumstances as well.